by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims
Case synopsis:
A woman shopper at a major retailer took an aerobic stepper from the shelf. The packaging consisted of: a printed placard, sized to cover the top surface of the stepper; and, plastic shrink wrap that completely enshrouded the stepper. Prominently depicted on the placard was a woman dressed in exercise tights, performing step aerobics. The shopper placed the stepper, still packaged, on the floor and then stepped up and onto the product. The product slid forward along the floor. The woman fell to the floor and sustained serious injuries.
The ensuing litigation against the manufacturer and the retailer alleged defective packaging, an unreasonably dangerous product, and failure-to-warn.
I was retained by the attorney for Plaintiff.
My opinions:
I testified at trial.
The packaging embodied a design defect, inherent in each exemplar. The defect was that the packaging neutralized a safety feature of the product, namely, the non-skid discs, one each at the four corners of the stepper. As long as the stepper was in the packaging, the non-skid discs couldn’t be in contact with the floor.
The packaging embodied a marketing defect. The defect was the failure-to-warn that the packaging should be removed before any use of the product.
The two defects resulted in an unreasonably dangerous product and were direct and proximate causes to the accident.
It was foreseeable that a shopper might attempt an in-store trial of the stepper. The sturdiness of the product, required for its being fit for its intended use, was not dissuasive of such a trial. Nor was it dissuasive that such a trial would not sully the surface of the product and its placard, since both were protected by the shrink wrap.
It was foreseeable that an uncarpeted, hard surface store aisle would not provide sufficient friction to prevent a stepper enshrouded in plastic shrink wrap from sliding.
It was foreseeable that, without adequate warnings, a shopper would not be aware of the hazard to safety associated with attempting an in-store trial. Plaintiff’s actions were not reckless, nor did they constitute a willing assumption of risk. The placard’s depiction promoted the belief that it was not dangerous to step up and onto the product. The difference between what the placard depicted and what Plaintiff attempted was that, in the latter case, the product still was in its packaging. Plaintiff had no way of knowing that the difference was crucial.
The state-of-the-art in packaging afforded alternatives that were technologically and financially feasible. One would have been to package the stepper in a carton, printed with necessary product promotion and information. A shopper would have been less prone to step on a carton; furthermore, even if stepped on, a carton would have been less prone to sliding along a floor.
Result:
Verdict for Plaintiff.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com